Guard Who Failed Test Can't Prove Firing Was Gender Bias

A female security guard could not show her employer’s decision to terminate her was pretext for gender discrimination where the decision-maker was determined to have acted in good faith when considering the employer’s regulations, the 10th U.S. Circuit Court of Appeals ruled.

Billie Mancell was a civilian employee of the United States Army, working as a lead security guard in New Mexico. In accordance with Army regulations, her employment was conditioned upon her annual completion of a physical ability test (PAT). The PAT involved two components: push-ups and a timed 1.5 mile run. In 2010, Mancell attempted the PAT twice and failed each time. Despite failing, the Army supervisor, Donald Morrison, decided to allow her a third attempt.

Before Mancell could try the PAT a third time, she suffered a hernia. The relevant Army regulation exempted her from taking the PAT during her recovery. In April 2011, she was medically cleared for all duties. Her new supervisor, Donald Knox, scheduled her third PAT attempt for July 25, 2011. He allowed her to leave work an hour early each day to train for the test. During her July 25 attempt to pass the PAT, Mancell injured her knee on the first lap and did not complete the run.

Knox believed the relevant Army regulation required a security guard who had been cleared of a temporary medical restriction to pass the PAT within 90 days of medical clearance. He consulted with the Army’s subject matter expert regarding the regulation, who agreed with his interpretation. Because she had not passed the PAT within the 90--day time frame, the Army terminated Mancell’s employment.

Believing she had been treated differently than male co-workers, Mancell filed a sex discrimination claim under Title VII of the 1964 Civil Rights Act. The Army countered with a legitimate, nondiscriminatory reason for removal: Mancell’s failure to pass a PAT. The district court held that Mancell could not establish pretext.

The 10th Circuit agreed. Mancell claimed the Army’s decision to terminate her was the result of gender bias as evidenced by the limited amount of time the Army gave her to recuperate from surgery, and because she was allegedly treated differently than two male co-workers. The court rejected each of these pretext arguments. In addition, Mancell argued that the Army’s interpretation of its own regulations was incorrect. According to Mancell, because she injured her knee during her third PAT attempt, her third attempt should have been deemed invalid rather than a failure. The 10th Circuit reasoned that it did not need to interpret the relevant Army regulation, but only to decide whether the Army’s decision-maker, Donald Knox, held an honest belief that his understanding of the Army regulation was correct, and whether he acted in good faith on that belief. Mancell could not show the Army’s actions were pretext for discrimination because, in part, Knox went so far as to confirm his understanding of the relevant Army regulation with the subject matter expert.

Mancell v. McHugh, 10th Cir., No. 15-2079 (Jan. 25, 2016).

Professional Pointer: Employers facing difficult decisions should reach a reasonable conclusion based on a good-faith belief. Even if that good-faith belief turns out to be incorrect, employers must be able to show they genuinely believed the reason for their adverse employment decision was legitimate.

Roger G. Trim is a shareholder and Steven R. Reid is an associate in the Denver office of Ogletree Deakins, a labor and employment law firm representing management.